The U.S. Supreme Court let us know exactly where it stands in the conflict between police authority and defendants’ rights. In its Vega v. Tekoh decision last week, the court told police, “We got your back.” That’s not unusual, but it’s a lot louder and more dangerous than the typical pro-police decision. This time, it cuts straight to one of the core beliefs Americans hold about their police: that they have to read you your rights when they place you under arrest.
That belief is so deeply ingrained that even the ever-present “copaganda” on network TV reinforces it every week. We think of this warning as an issue of constitutional rights. But it doesn’t come directly from the constitution; it’s from a procedural protection the Supreme Court adopted in Miranda v. Arizona. We are all familiar with how it goes: “You have the right to remain silent. Anything you say can, and will, be used against you in a court of law. You have the right to an attorney. If you cannot afford one, one will be appointed to you.”
The constitutional right the warning is meant to protect is that of defendants not to be compelled to testify against themselves. That right goes only so far, though, and once a defendant is aware of their rights, the cops are free to use deception and coercion as long as they don’t completely overbear the defendant’s will. With the right to a Miranda warning weakened, the right against self-incrimination is at risk because of the wide range of things police can do that don’t “compel” self-incrimination.
The law demands that every violation of a person’s rights must have a remedy. Usually, the remedy for the violation of a defendant’s right against self-incrimination, including a failure to be given the Miranda warning, is the exclusionary rule. In a criminal trial, prosecutors aren’t allowed to use evidence obtained through interrogating someone they’ve arrested and failed to advise of their rights; the evidence is excluded from the trial. That didn’t happen for Terence Tekoh, a Los Angeles patient transporter accused of sexually assaulting a patient, and the prosecution introduced a confession he gave without having been read his rights. While he was ultimately acquitted, he sought to vindicate his rights under a federal civil rights law that allows people to sue state government officials who violate their legal or constitutional rights and recover damages. But the Supreme Court said that because Miranda warnings aren’t a constitutional right, Tekoh couldn’t sue the officers who illicitly induced his confession.
That’s not the same as qualified immunity, and the distinction is probably the most dangerous part of this opinion. Qualified immunity protects government officials who violate someone’s rights unless those rights are clearly established and something a reasonable person would have known. Qualified immunity jurisprudence has frequently required violations to be established on an extremely specific basis. For much of the doctrine’s life, courts could choose to evaluate whether an action violated someone’s rights or whether those rights were clearly established first and end the analysis there if the answer invoked qualified immunity. In some courts, that meant rights frequently just didn’t become established.
Needless to say, qualified immunity is awful, and it’s one of the few areas of constitutional law that even conservatives manage to get right on a regular basis. Justice Clarence Thomas, seldom noted for bleeding-heart sentiments, would prefer to revisit and restrict the doctrine.
But eliminating qualified immunity wouldn’t have preserved Tekoh’s remedy. Rather than saying there was a limit on his statutory right to recover against the police who mistreated him, the court took the more circuitous route of saying the police’s misdeeds didn’t even fall within the realm of civil rights protection. That requires reading the protection of rights secured by the “laws” to protect only those secured by statutory law rather than judicially derived common law. And if that’s the case, any statute or right we have that isn’t explicitly protected by the constitution — determined by six antidemocratic conservative justices after consulting 18th century history — is on the chopping block.
This decision isn’t just about the protection of the Miranda warning: It’s also a test balloon for stripping away constitutional rights to the point that cops can declare open season on Black and Brown people.
And we know where that leads. Give police a superpower and they’ll use it to abuse Black and Brown people, trans people, mentally ill people, religious minorities, sex workers, and immigrants. Without the Miranda warning, plenty of other tactics might come back into play. Is threatening a defendant outside of the courtroom to get a written confession really compelled? Sure, it is under current precedents, but the Supreme Court has shown a remarkable disregard for those lately. And if that falls, what’s to say that torture outside of a courtroom remains a constitutional violation? The court could trash qualified immunity, but if our underlying rights vanished, too, what good would it do?
Plenty of cops see themselves as Harry Callahan, portrayed by Clint Eastwood in “Dirty Harry,” who is prevented from busting the bad guys by some perverted notion that criminals might have rights. They can barely restrain themselves from violating the rights of people they encounter on the street as it is. This decision isn’t just about the protection of the Miranda warning: It’s also a test balloon for stripping away constitutional rights to the point that cops can declare open season on Black and Brown people.
Brandon Hasbrouck is a Washington and Lee University School of Law assistant professor who researches and teaches in the areas of criminal law, criminal procedure, movement law, and abolition.